The essentials of managing your IP and protecting your brand

Our first live demo was going really well. We had a huge company interested and engaged, and wanting to learn more about our technology.

“Do you to know how we make that happen?” I asked, referring to our product.

“No, I don’t think you want to tell me that,” said the company rep.

But I was excited about our product—of course we wanted to share the intricacies of what we’d accomplished.

“Are you sure?” I said, “I can tell you right now the secret behind our technology.”

“No,” the rep said again, “you really don’t want to tell me that. And what you need to do is not tell anybody. And you need to get a lawyer really, really quickly to find out if you have intellectual property, because if you do, you shouldn’t be telling anyone.”

The above scenario depicted by serial entrepreneur Barry Fogarty is not one he’s proud of. But it’s a situation that many startups find themselves in when it comes to managing their intellectual property.

How do you know if you have intellectual property (IP)? What do you need to do to protect it? And how can you protect your brand in an increasingly social age?

At this past week’s E101, speakers Grant Tisdall and Daniel Cole of Gowlings, and Barry Fogarty of klothed shed light on how to manage, protect and commercialize your IP.

The fundamentals of IP

The story begins with why you need to be concerned about your intellectual property in the first place. As Grant Tisdall explains, “if you can’t formalize your idea into IP, there’s no special advantage that you’re going to get from that invention.”

Why? Because without IP, you have no vehicle through which you can enforce that ownership.

Grant goes on to give an overview of the different types of intellectual property, a 101 on patents and how you can commercialize aspects of your IP. He stresses the importance of identifying the importance of IP relative to your startup. Does it affect your profitability? How sophisticated does your strategy need to be? What is a reasonable level of resource allocation to address your company’s IP needs?

A stumbling block for many companies is whether their IP strategy is a part of the overall company culture. Grant points out that your IP portfolio can’t grow by itself and become important—management has to live and breath it, or else it won’t go anywhere.

Protecting your brand

On top of thinking about intellectual property, patents and trade secrets, startups also have to think about their brand and how to protect it in the social age.

Daniel Cole talks about the different mechanisms used to protect a trademark, and in the end his message is clear: “Don’t do stupid stuff.”

While some things are fairly obvious, such as not engaging in falsely misleading advertising, and not using competitors’ trademarks as a means of disparaging them, other cases in the social realm are not as clear-cut.

Take the examples below. We have two companies using celebrity likeness to to help promote their band. The case on the left? Pharrell ended up tweeting back. Arby’s received over 46,000 retweets and walked away a very happy company. The case on the right? Katherine Heigl ended up suing Duane Reade for $6 million.

Daniel recognizes that in order for your brand to grow, you have to engage in these types of activities. But you have to be smart about it. And although in the social sphere you will never be able to de-risk completely, there are steps and processes each startup should have in place to mitigate these risks.

One startup’s case study in IP

Filing for a patent, getting a registered trademark or even discovering if you have IP in the first place can be daunting for any entrepreneur. And that’s where Barry Fogarty comes in to provide a unique look at how he managed the IP portfolio for one of his first companies, Octopus.

Barry advises startups to be cognizant of public disclosure from the start. The qualifications for getting a patent are predicated on your product or technology being a secret. If you’ve already told a lot of people about it, it’s no longer a secret, and the patent office will not give you a patent.

If you think you have IP, Barry advises startups to invest the time in doing their due diligence. Get a lawyer. Find out what other patents exist in that same area and make sure you’re not infringing on them. Have your employees sign an IP agreement during their onboarding. Keep good records.

One theme that comes through in Barry’s talk is that when it comes to your IP, don’t take anything for granted, especially if you think you might end up in litigation. It’s relatively easy to have your employees sign an IP agreement when they have just been hired. It’s a completely different task to track them down two years later when they no longer work for your company and are only too aware that you’re involved a legal battle again Microsoft.

Missed the lecture?

Watch the videos below to hear about the five lessons serial entrepreneur Barry Fogarty learned along the way, see more examples of social media faux pas, and find out what’s involved in managing your own IP.

A Startup’s Guide to Intellectual Property

Brand Protection in the Social Age

Fundamentals of IP Management

Entrepreneurship 101 course resources

Lisa Zarzeczny is the Manager, Entrepreneurship and Innovation Series at MaRS, where she oversees a suite of high-quality education programs to support the needs of entrepreneurs in Ontario and across Canada. See more…